Was There Ever Such a Thing as Judicial Self-Restraint?

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Was There Ever Such a Thing as Judicial Self-Restraint? Was There Ever Such a Thing as Judicial Self-Restraint?

William M. Landes

Lee Epstein

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Recommended Citation Recommended Citation William M. Landes & Lee Epstein, "Was There Ever Such a Thing as Judicial Self-Restraint?," 100 California Law Review 557 (2012).

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Was There Ever Such aThing as Judicial Self-Restraint?

Lee Epstein & William M. Landes*

Richard Posner's version of judicial self-restraint implies thatindividual Justices who embrace restraint would tend to uphold theconstitutionality of a law even if it went against their preferences orideology. Judge Posner suggests that this form of restraint onceexisted but no longer does. Using a dataset of cases that consideredthe constitutionality offederal laws, we explore whether, in line withJudge Posner's hypothesis, the Court grew more activist (that is,more willing to strike laws) over the period between 1937 and 2009and whether the ideological leanings of Justices, and not judicialself-restraint, better explain how they voted in cases challenging theconstitutionality offederal laws. Our results answer the question wepose in the Essay's title in the affirmative: there was such a thing asjudicial self-restraint, but there no longer is, just as Judge Posnersuggests. Justices appointed since the 1960s were and remainideological in their approach to the constitutionality offederal laws.

In troduction ..................................................................................................... 55 8I. T h e D ata ...................................................................................................... 5 5 9II. T im e T rends ............................................................................................... 56 1III. Ideology and Judicial Restraint ................................................................. 563

A . A ll Justices ...................................................................................... 567B . Individual Justices ........................................................................... 569

C on clu sion ...................................................................................................... 57 6

Copyright © 2012 California Law Review, Inc. California Law Review, Inc. (CLR) is aCalifornia nonprofit corporation. CLR and the authors are solely responsible for the content oftheir publications.

* Prepared for the 2010 Brennan Center Jorde Symposium. Lee Epstein is the ProvostProfessor of Law and Political Science and the Rader Family Trustee Chair in Law at the University ofSouthern California. William M. Landes is the Clifton R. Musser Professor Emeritus of Law andEconomics at the University of Chicago Law School. The authors thank Richard A. Posner for usefulcomments, Stefanie Lindquist for her dataset, and Mike Lehrman, Percy Xu, and Emily Standen forhelp with data collection. Epstein thanks the National Science Foundation, and Landes, the law andeconomics program at Chicago for research support. All data used in this article are available at: LeeEpstein, Judicial Restraint, UNIV. OF S. CAL, http://epstein.usc.edu/research/JudicialRestraint.html.

HeinOnline -- 100 Cal. L. Rev. 557 2012

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INTRODUCTION

Richard Posner calls the term "judicial self-restraint" a "chameleon."1

Among its many meanings, the one that interests Posner the most is thereluctance of judges to declare legislation or executive action unconstitutionalout of deference to the judgments of the elected branches of government. 2

Judge Posner claims that judicial self-restraint in this form once existed butsurvives no longer, having been supplanted first by exuberant liberal activismand later by constitutional theory. 3

From an empirical standpoint, Judge Posner's version of judicial self-restraint implies that the Supreme Court would be reluctant to hear cases thatchallenge the constitutionality of federal laws unless a lower court had alreadystruck down the law. Posner's understanding of judicial self-restraint alsopredicts that when the Court does consider a law's constitutionality, it woulduphold the law unless it is so clearly unconstitutional that "it is not open torational question."'4 Finally, and related to these two claims, individual Justiceswho embrace judicial self-restraint would tend to uphold the constitutionality ofa law even if it went against their preferences or ideology.

We are particularly interested in the last hypothesis or, more precisely, itsalternative: that votes to uphold (or invalidate) government action reflect theJustices' political preferences toward the substantive policy content of thelaw-not an underlying taste for judicial restraint (or activism). 5 In other

1. Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 CALIF. L. REV. 519, 520(2012)

2. Id We refer here to what Judge Posner labels type (3) judicial restraint: "judges are highlyreluctant to declare legislative or executive action unconstitutional-deference is at its zenith whenaction is challenged as unconstitutional." Posner is interested in a particular version of type (3)restraint-what he terms "Thayerism." According to Posner, a Thayerian judge would only invalidatea statute if its unconstitutionality was "so clear that it is not open to rational question." Id. at 522 (citingJames B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L.REV. 129, 144 (1893)).

3. Posner, supra note 1, at 535 ("The evanescence of type (3) judicial restraint, both generallyand in its Thayerian form, is related to the rise of constitutional theory-a rise stimulated to asignificant degree by Roe v. Wade and by a conservative backlash against the Warren Court andagainst the follow-on rulings of the Burger Court, such as Roe itself .... ").

4. Posner, supra note 1, at 522 (quoting Thayer, supra note 2, at 144).5. Most realists would have no trouble with Posner's second hypothesis, but many political

scientists with a quantitative bent would claim that judicial restraint has never existed. Recentexamples (using quantitative data) that look mainly at Posner's second hypothesis include LINDACAMP KEITH, THE U.S. SUPREME COURT AND THE JUDICIAL REVIEW OF CONGRESS 179 (2008)(finding that "a Supreme Court justice's vote on the constitutionality of a congressional statute isstrongly influenced by the consistency between the policy direction of the statute and the justice'sideological preferences"); STEFANIE A. L1NDQUIST & FRANK B. CROSS, MEASURING JUDICIAL

ACTIVISM 59-64 (2009) (finding that the majority of Justices serving since 1953 were ideological intheir approach to judicial review); Robert M. Howard & Jeffrey A. Segal, A Preference for Deference?The Supreme Court and Judicial Review, 57 POL. RES. Q. 131, 131 (2004) (many Justices "base theirdecisions to strike or uphold... laws on ideological considerations," though the Court "itself can becalled restraintist [because] it never appears to strike laws sua sponte"); Stefanie A. Lindquist & RorieSpill Solberg, Judicial Review by the Burger and Rehnquist Courts, 60 POL. RES. Q. 71, 72 (2007)

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JUDICIAL SELF-RESTRAINT?

words, we test the hypothesis that left-leaning Justices tend to invalidateconservative laws and right-leaning Justices liberal laws, and that this mayprovide a non-restraint-based explanation for trends in judicial invalidations ofstatutes.

Using a dataset of cases that considered the constitutionality of federallaws, we test this hypothesis against the backdrop of Judge Posner's claim thatjudicial self-restraint once existed but no longer does. This dataset-which wedescribe in more detail in Part I-allows us to explore whether, in line withJudge Posner's hypothesis, the Court grew more activist (that is, more willingto strike laws) over the period between 1937 and 2009 and whether theideological leanings of Justices, and not judicial self-restraint, better explainhow they voted in cases challenging the constitutionality of federal laws.

Our results, described in Parts II and III, answer the question we pose inthe Article's title in the affirmative: there was such a thing as judicial self-restraint but there no longer is, just as Judge Posner suggests. Justicesappointed since the 1960s were and remain ideological in their approach to theconstitutionality of federal laws. 6

I.

THE DATA

To explore the various accounts of judicial review, we created a dataset ofevery orally argued Supreme Court case decided between the 1937 and 2009Terms in which the Court considered a challenge to the constitutionality of afederal law.7 The data come primarily from three sources: (1) Nicholas

[hereinafter Lindquist & Solberg, Burger and Rehnquist Courts] (finding that "members of both theBurger and Rehnquist Courts are responsive to a number of different factors when assessing theconstitutionality of legislative enactments, including their own ideological predispositions toward thesubstantive policy embedded in the statute"); Rorie Spill Solberg & Stefanie A. Lindquist, Activism,Ideology, and Federalism: Judicial Behavior in Constitutional Challenges Before the Rehnquist Court,1986-2000, 3 J. EMPIRICAL LEGAL STuD. 237, 237 (2006) [hereinafter Solberg & Lindquist,Rehnquist Court] ("[C]onservative justices as well as liberals are likely to strike down state laws whenthose laws fail to conform to [their] ideological preferences."); David L. Weiden, JudicialPoliticization, Ideology, and Activism at the High Courts of the United States, Canada, and Australia,64 POL. RES. Q. 335, 335 (2011) ("The results show significant attitudinal judicial voting at each highcourt .... ").

6. Still, we should note an important qualification to this conclusion. We are not claiming thateven the modem-day Justices always vote their political preference; they only do so when theideological stakes are sufficiently strong. Indeed, between 30 and 40 percent of the Court's decisionsduring the period between 1937 and 2009 were decided unanimously. Because of the Justices'ideological differences, this behavior would be inexplicable if ideology dominated all decisions. But itdoes not. The most likely explanation of unanimous decisions is that the ideological stakes in thesecases are small and thus insufficient to overcome slight dissent aversion and legalistic commitmentsamong the Justices. See Lee Epstein, William Landes & Richard Posner, Unanimous Decisions in theU.S. Supreme Court, 106 Nw. U. L. REV. (forthcoming 2012) (on file with the authors).

7. Utilizing this approach, the dataset consists of cases striking and upholding federal laws.This is an important point because examining only "strike" cases can lead to inaccurate inferences.Imagine a Justice who almost always votes with the majority when the Court strikes a law. We might

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Zeppos's list of all cases reviewing the constitutionality of federal lawsbetween the 1937 and 1991 Terms, 8 (2) Stefanie Lindquist's dataset containing

cases systematically culled from the U.S. Supreme Court Database (for the1992-2004 Terms), 9 and (3) our own search of cases from the 2005-2009Terms (the Roberts Court).' 0 Where overlaps exist among our sources, wechecked them against one another."l We also consulted the CongressionalResearch Service's The Constitution of the United States of America: Analysis

and Interpretation and conducted searches using Westlaw's "unconst!"facility, though both are limited to cases invalidating federal laws.

We are reasonably confident that we have identified most, if not all, of the

cases in which the Court considered the constitutionality of a federal law. 13

This amounted to 647 cases, or 5565 votes cast by the forty-four Justicesserving since 1937.14 Of the 647 cases, 119, or 18 percent, struck down the

federal law in whole or in part. Of the 5565 individual votes, 29 percent were tostrike the federal law and 71 percent were to uphold it.

infer that this Justice is an activist. But now suppose the Justice almost always votes with the majoritywhen the Court upholds a law. Would we still deem him an "activist"? Probably not. Taking intoaccount all constitutional review cases, on the other hand, can help to distinguish between trulyaggressive Justices-those willing to strike regardless of whether or not the Court does-and thosewho vote more meekly with the majority of their colleagues regardless of whether the majority strikesor upholds the law at issue. For other problems with examining only strike cases, see Nicholas S.Zeppos, Deference to Political Decision Makers and the Preferred Scope of Judicial Review, 88 Nw.U. L. REv. 296, 306 (1993); Tom S. Clark & Keith E. Whittington, Ideology, Partisanship, andJudicial Review of Acts of Congress, 1789-2006 (Working Paper, May 22, 2009), available athttp://ssm.com/abstract=-1475660.

8. Zeppos, supra note 7, at 335-65. We checked Zeppos's list against one provided to us byLinda Camp Keith for the 1937-1945 Terms. Keith used this data in her book, THE U.S. SUPREMECOURT AND THE JUDICIAL REVIEW OF CONGRESS, supra note 5.

9. U.S. SUPREME COURT DATABASE, http://supremecourtdatabase.org (last visited Jan. 21,2012). For Lindquist's procedures, see LINDQUIST & CROSS, supra note 5; Lindquist & Solberg,Burger & Rehnquist Courts, supra note 5; Solberg & Lindquist, Rehnquist Court, supra note 5.

10. Using the U.S. Supreme Court Database, we identified all cases in which a federal law wasat issue. We then read the cases to determine whether the Court considered the constitutionality of thelaw in question. As with the lists developed by Zeppos and Lindquist, the consideration of the law'sconstitutionality need not have been the primary thrust of the Court's decision. See LINDQUIST &CROSS, supra note 5; Zeppos, supra note 7.

11. For example, because Lindquist's dataset goes back to the 1953 Term, we were able tocross-check it against Zeppos's list.

12. See, e.g., CONG. RESEARCH SERV., S. DOC. NO. 111-39, THE CONSTITUTION OF THEUNITED STATES: ANALYSIS AND INTERPRETATION (SUPP. 2010), series since 1992 available athttp://www.gpo.gov/fdsys/browse/collection.action?collectionCode=GPO (follow hyperlink to title).

13. On the other hand, we are less confident about the overall reliability of the dataset.Determining whether the Court considered the constitutionality of a federal law (and even whether theCourt struck down a federal law) is a subjective question. See Clark & Whittington, supra note 7. It ispossible (actually likely) that Zeppos and Lindquist used different procedures to identify the cases intheir datasets. As we explain in the text we checked sources against one another to the extent we wereable, but there are likely sins of commission and omission. Eventually, we hope to create a dataset witha known reliability-a task that involves generating a protocol to identify the relevant cases and thenapplying the protocol to all cases decided in the 1937-2009 Terms.

14. Our dataset is limited to orally argued cases.

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Before turning to the results, we should note two weaknesses with ourapproach. First, we examine only federal laws, while Posner's definition of(type 3) judicial self-restraint also references state and local laws and executivedecisions. Existing datasets cover these other forms of government action, butonly for the 1946 Term forward; collecting them for the 1937-1945 Termswould be a major task, and one we leave for another day. 15 Second, though ourdataset has a sufficiently long time horizon to capture two Justices associatedwith judicial self-restraint (Frankfurter and the second Harlan), we miss OliverWendell Holmes (1902-1931 Terms) and all but two terms of Justice LouisBrandeis's tenure.16 Assessing these Justices' behavior must also wait foranother paper.

II.

TIME TRENDS

What do the data tell us? As Figure 1 reveals, the fraction of all cases inwhich the Court reviewed a federal law's constitutionality has remainedrelatively constant across time. It reached a low of 6 percent during the Warrenyears, when 103 of the Court's 1692 orally argued cases raised questions aboutthe constitutionality of a federal law. The peak of the Court's volume ofconstitutional jurisprudence was not much higher, reaching just 9 percentduring the Rehnquist and Roberts Courts. Disaggregating the data tocorrespond to particular Court Terms does not change this picture in anymeaningful way. The range is 3 percent of cases considered (in 1966) up to apeak of 16 percent (in 1937 and 2009), and a regression yields no significanttime trend. 17

Also obvious is that the fraction is fairly low. In no single Term has it everexceeded 20 percent; it was greater than 15 percent only three times (the 1937,1949, and 2009 Terms). Presented another way, Congress enacted 19,579

15. For an analysis of the Court's review of federal, state, and local laws, see LINDQUIST &CROSS, supra note 5 (for the 1953-2001 Terms); id. at 85-104 (examining judicial review of executivebranch decisions); Ruth Colker & Kevin M. Scott, Dissing States?: Invalidation of State ActionDuring the Rehnquist Era, 88 VA. L. REV. 1301 (2002); John B. Gates, Partisan Realignment,Unconstitutional State Policies and the US. Supreme Court, 1837-1964, 31 AM. J. POL. SCI. 259(1987).

16. Brandeis appears in only thirty-one cases in our dataset (twenty-four in 1937 and seven in1938).

17. The regression is:In(Fraction) =-8.83 + .003Term

(1.98) (1.39)where In(Fraction) denotes the logarithm of the fr-action of cases each term that review theconstitutionality of federal laws, Term denotes the term of the court and the t-ratios are in parenthesesbelow the regression coefficients. Although the coefficient on Term is slightly positive (a positive timetrend), it is not statistically significant.

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public laws between 1947 and 2009.18 During the same period, the Courtreviewed the constitutionality of federal laws in only 516 of the 6810 cases itdecided (or 7.6 percent).

These facts alone might suggest that the Justices have exercisedconsiderable "restraint" for the last seven decades, even during the periods thatPosner argues were characterized by a decline in restraint. Nonetheless, wemust resist crediting this interpretation because we lack information about thepool of petitions for certiorari. It is possible that very few petitions raisedquestions about the constitutionality of federal laws, and the Court grantedmost of them. The low proportion of cases considering the constitutionality offederal laws could therefore result not from the Justices exercising restraint, butinstead from the limited pool of certiorari petitions available to the Court.

FIGURE 1: Fraction of all orally argued cases reviewing theconstitutionality of federal laws, by Chief Justice era (1937-2009 Terms)

Hughes (1937-40)

Stone (1941-45)

Vinson (1946-52)

Warren (1953-68)

Burger (1969-85)

Rehnquist/Roberts (1986-09)

0 .02 .04 .06 .08 .1Fraction of Cases Reviewing the Constitutionality of a Federal Law

What we can examine are trends in how the Justices treat the laws they doreview; that is, the fraction of cases reviewing and striking a federal law. Thesedata present a picture that is more consistent with Posner's narrative about theexistence and subsequent decline in judicial restraint.1 9 As Figure 2

18. Congressional Measures Introduced and Enacted, 1947-2009, in VITAL STATISTICS ONAMERICAN POLITICS 2009-2010, at 198 tbls.5, 6 & 7 (Harold W. Stanley & Richard G. Niemi eds.,2009), available at http://library.cqpress.com/vsap/vsap09_tab5-7.xls.

19. Because our dataset begins with the 1937 Term, we cannot say much about the original riseof judicial self-restraint. For studies with longer time horizons, see Aziz Z. Huq, When Was JudicialSelf-Restraint?, 100 CALIF. L. REV. 579 (2012); KEITH, supra note 5; Clark & Whittington, supra note

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demonstrates, there appear to be two different post-New Deal Courts. Duringthe Hughes, Stone, and Vinson eras, the Justices struck down (in whole or inpart) just 5 of the 174 laws they considered, or about 3 percent. Between the1953 and 2009 Terms, however, this figure rose to 24 percent (114 of 473). Thelast two decades, in particular, may have been the most aggressive in the post-New Deal years-perhaps in the Court's entire history.20 The Justicesinvalidated federal laws in 30 percent of cases (57 of 187).

FIGURE 2: Fraction of all orally argued cases that reviewed and invalidatedfederal law, by Chief Justice era (1937-2009 Terms)

Hughes (1937-40)

Stone (1941-45)

Vinson (1946-52)

Warren (1953-68)

Burger (1969-85)

Rehnquist/Roberts (1986-09)

0 .1 .2 .3Fraction of Review Cases Declaring Law Unconstitutional

III.

IDEOLOGY AND JUDICIAL RESTRAINT

Although the data in Figure 2 seem to validate some of Judge Posner'sclaims, they do not tell the entire story about judicial restraint. This is because,ideologically speaking, it may have been quite easy for the liberalRoosevelt/Truman Justices to uphold laws passed by liberal Congresses. Andyet, a closer look at the data suggests that judicial restraint was an importantfactor explaining why the Hughes, Stone, and Vinson Courts only invalidated

7; Gregory A. Caldeira & Donald J. McCrone, Of Time and Judicial Activism: A Study of the U.S.Supreme Court, 1800-1973, in SUPREME COURT ACTIVISM AND RESTRAINT 103, 103-28 (Stephen C.Halpern & Charles M. Lamb eds., 1982).

20. THOMAs KEcK, THE MOST ACTIVIST SUPREME COURT IN HISTORY (2004) and JEFFREY

A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATITUDINAL MODEL REvISITED

414 (2002) reach similar conclusions.

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five federal laws, or less than 3 percent of the 174 cases reviewing theconstitutionality of federal laws. Although none of the 115 liberal laws weredeclared unconstitutional (consistent with the ideological congruity argument),only five, or 8.5 percent, of fifty-nine conservative laws were declared

21unconstitutional. While this difference is statistically significant, the datasuggest that the 1937-1952 Court was committed to judicial self-restraint. Ifjudicial self-restraint were only a minor factor in the 1937 to 1952 period, onewould not expect a liberal court to uphold more than 90 percent of theconservative laws it reviewed.

Obviously, this picture is somewhat muddled. To better assess claimsabout the political nature of judicial self-restraint, we added two crucial piecesof information to the dataset-one on the ideology of the Justices and the otheron the ideological content of the federal law at issue. To determine the Justices'ideologies, we used the means of their Martin-Quinn scores (which are basedon the Justices' votes in non-unanimous cases).22 Relative to other measures,these scores provide a more precise estimate of ideology; they are alsoavailable for all Justices and for all terms in our dataset. The lower a Justice'sMartin-Quinn score, the more liberal that Justice's ideology; the higher theMartin-Quinn score, the more conservative the judicial ideology. The scoresrange from -4.12 (William 0. Douglas) to 3.84 (Clarence Thomas). Table 1provides other descriptive information.

21. We provide a definition of liberal and conservative laws below. See infra notes 24-25 andaccompanying text.

22. We computed these means from the term-by-term Martin-Quinn scores. See Andrew D.Martin & Kevin M. Quinn, MARTIN-QUINN SCORES, http://mqscores.wustl.edu/measures.php (lastvisited Jan. 21, 2012). For a technical description of how these scores are computed, see Andrew D.Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for theUS. Supreme Court, 1953-1999, 10 POL. ANALYSIS 134 (2002). For a more accessible description,see Andrew D. Martin et al., The Median Justice on the United States Supreme Court, 83 N.C. L. REV.1275, 1296-1300 (2005).

One drawback of the Martin-Quinn scores is that they are endogenous. That is, because Martinand Quinn derive their estimates from Justices' votes, deploying the scores to study the effect ofideology on votes amounts to using votes to predict votes, We offer three ways to think about thisproblem. First, as Figure 1 suggests, the number of federal judicial review cases per term is so smallthat "circularity is not a practical concern." See Andrew D. Martin & Kevin M. Quinn, Can Ideal PointEstimates Be Used as Explanatory Variables? 3 (Oct. 8, 2005), available at http://mqscores.wustl.edu/media/resnote.pdf. Second, we used the career mean of the Martin-Quinn scores, not the term-by-termestimates. Finally, we estimated the statistical models to follow using three other measures of ideology:the Justice's party affiliation (Republican or Democrat), the appointing President's party affiliation,and the Justice's Segal-Cover score (derived from newspaper editorials). Jeffrey Segal, PerceivedQualifications and Ideology of Supreme Court Nominees, 1937-2005 (undated) (updating andbackdating Segal & Cover, infra), available at http://www.stonybrook.edu/commcms/polisci/professors/qualtable.pdf. They run from 0 (most conservative) to 1 (most liberal). For details on howSegal and Cover calculate these scores, see Jeffrey A. Segal & Albert Cover, Ideological Values andthe Votes of US. Supreme Court Justices, 83 AM. POL. SC. REV. 557 (1989). Substituting the othermeasures for the Martin-Quinn scores does not produce substantively different results; in the onemodel (president's party, conservative laws) the coefficient produces a correctly signed but statisticallyinsignificant coefficient.

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TABLE 1: Description of the variables23

MeanDependent variable (Std. dev.)Justice's vote to invalidate .289

(invalidate = 1; not invalidate = 0) (.454)Independent variablesJustice ideology -. 001

(higher numbers are more conservative) (1.854)

Law ideology .426(liberal = 1; conservative = 0) (.495)

Direction of the lower court's decision .502(liberal = 1; conservative = 0) (.500)

Case came on certiorari .674(certiorari = 1; not certiorari = 0) (.469)

Civil liberties case .642(civil liberties case = 1; non-civil liberties case - 0) (.480)

Number of (orally argued) cases 121.8(28.08)

Term 1971.5(21.370)

We measure the ideology of the federal law based on the ideologicaldirection of the Court's decision. Suppose the Court invalidated a law on theground that it discriminated against gays. We would code the Court's decisionas liberal and the law conservative. Likewise, if a federal law outlaweddiscrimination against gays and the Court invalidated it, we would code the lawas liberal and the Court's decision conservative. 24 Fortunately, we did not needto make these decisions. The U.S. Supreme Court Database codes theideological direction of every Supreme Court decision. From this variable, weconstructed the ideological direction of the law (1 = liberal; 0 = conservative).

23. N = 5477 votes. We eliminated the eighty-eight votes that the U.S. Supreme CourtDatabase codes as "unspecifiable" on the ideological direction variable.

24. To provide examples from our dataset, in South Carolina v. Katzenbach, 383 U.S. 301(1966), the Court upheld a liberal law (the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat.445), and in United States v. O'Brien, 391 U.S. 367 (1968), the Court upheld a conservative law (a1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act, 79 Stat. 586).

25. SUPREME COURT DATABASE, supra note 9. For the Database's definitions of liberal andconservative, see Decision Direction, SUPREME COURT DATABASE, http://supremecourtdatabase.org/documentation.php?var-decisionDirection (last visited Jan. 13, 2012). The Database goes back (atthis moment) to 1946. For earlier terms, we rely on a database developed by Jeffrey A. Segal and LeeEpstein that uses the same definitions as the Supreme Court Database.

This is not an uncommon approach to measuring the ideological content of the law. SeeLtNDQUIST & CROSS, supra note 5, at 43; Segal & Spaeth, supra note 15, at 320-26. But there areother approaches. See Clark & Whittington, supra note 7, at 18 (measuring the partisan and ideological

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Finally, we added five control variables suggested in previous studies (seeTable 1). Most are designed to capture features of the Court's case-selectionprocess or docket. 26 The first, Direction of the Lower Court's Decision (coded1 for liberal; 0 if otherwise), accounts for the modem Supreme Court'stendency to reverse the decision of the court below (i.e., even a very liberalmajority will tend to reverse a decision below that upholds a liberal law; andvice versa for a conservative majority).27 Second, we include Term (a counterthat increases by 1 with each passing term), which serves as a rough proxy fortrends in judicial restraint, precedent, court procedures, or other factors thatmay influence the likelihood of invalidating federal laws. The third, Certiorari,controls for the means by which the case arrived at the Court (1 if the casecame on certiorari; 0 if otherwise). As Clark and Whittington suggest, 28 whenthe Court has complete discretion over whether to hear a case (as when theCourt grants certiorari), the Justices are free to focus their attention only onthose that "raise serious doubts about ... constitutional validity." 29 When theCourt is more constrained (as on mandatory appeal), the challenge to thelegislative action may be relatively weak. 30 Fourth, for the Number of (OrallyArgued) Cases, we hypothesize that, with more cases, the Court is morepressed for time and less likely to take the dramatic step of striking down afederal law. Finally, we include a variable for the Type of Statute because the

alignment between the Court and the Congress that enacted the law); see also Jeffrey A. Segal et al.,Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of PowersModel, 55 AM. J. POL. SCI. 89 (2011) (analyzing the effect of the current Congress's ideology ratherthan that of the enacting Congress on the Court's decision to uphold or invalidate).

26. Ideally, we would also model the selection process, but for present purposes, we follow thepath taken in previous studies and use proxies, such as the direction of the lower court decision. SeeLindquist & Solberg, Burger and Rehnquist Courts, supra note 5, at 76-77 ("[W]e note that thejudicial review cases heard by the Supreme Court do not arise on the Court's docket at random.Instead, the Court's certiorari process is complex and often involves strategic calculations on the partof the justices .... [I]f court intervention is nonrandom, ignoring this selection process raises thelikelihood that conclusions about the forces affecting subsequent votes to invalidate legislation will beinaccurate.") (internal citations omitted). Along similar lines, in subsequent work we wouldrecommend controlling for several other variables, including the number of amicus curiae briefs filedin support or in opposition to the law. See id. at 76 (the ideological distance between the Court and thecontemporaneous Congress); see Segal et al., supra note 25, at 94 (the age of the law and itsimportance); Clark & Whittington, supra note 7, at 19.

27. Between the 1946 and 2009 Terms, the petitioning party won in 63 percent of the 4515cases. This is computed from the U.S. Supreme Court Database (Case Centered Data Organized byCitation), using orally argued cases and the party winning variable.

28. Clark & Whittington, supra note 7, at 21; see also Colker & Scott, supra note 15, at 1314(hypothesizing that a federalist might use certiorari authority to hear and reverse cases in which lowercourts invalidated state action).

29. See Clark& Whittington, supra note 7, at21.30. Id. at 21 (observing that "the modem Court largely has discretion over which cases it will

choose to hear via a writ of certiorari, whereas the Court through most of its history heard most casesthrough mandatory appeal. This structural change may have had relevant consequences for the pool ofcases in which the Court considers challenges to the constitutionality of federal policies. In particular,we might expect that the earlier Court was forced to hear many relatively weak challenges to federallaws....").

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Justices tend to subject laws restricting rights and liberties (coded 1) to morerigorous standards of review than others, especially economic laws (coded 0).31

A. All Justices

We begin our assessment of the role of ideology in judicial review bymodeling the votes (to uphold or invalidate) of all forty-four Justices in twoequations: one for liberal laws and the other for conservative laws. (In SectionIII.B, we also estimate the two basic equations but examine the Justicesindividually.) Table 2 (on page 568) displays the logit results; we report onlythe marginal effects at the means of the independent variables. 32

The coefficients on Justice 's Ideology are most relevant for our purposes.All four coefficients are statistically significant and correctly signed. This tellsus that liberal Justices are significantly more likely to strike conservative laws,and conservative Justices are more likely to strike liberal laws.

How much more likely? Figure 3 (on page 569) provides one answer.There we display the predicted probability of upholding a federal law by theJustices' ideology, controlling for the other variables in equations 1 and 2 .Beginning with the left panel, the predicted probability of a very liberal Justiceupholding a conservative law is a low .22; for a very conservative Justice, theprediction jumps to .95. Put another way, liberals will quite likely invalidate aconservative law (.78 probability) and conservatives are quite unlikely to do so(.05 probability). The results are slightly less stark for liberal laws. Whileliberals will almost always vote to uphold these laws (.96), extremeconservatives are almost as likely to strike them as they are to uphold (.46).Figure 3 also allows us to consider the voting behavior of a hypothetical"nonideological" judge (an average Martin-Quinn score of 0). That judgewould be reluctant to declare a federal law unconstitutional, but more reluctantto strike down a liberal than conservative law (18 percent versus 33 percent).

31. To determine the type of statute, we used the Supreme Court Database's definitions. Online

Code Book, SUPREME COURT DATABASE, http://supremecourtdatabase.org/documentation.php (lastvisited Jan. 28, 2012).

32. Because Direction of the Lower Court's Decision can be misleading when there is aconflict in the circuits, we also estimated the models separately for cases in which the majority opinionstated that the Court took the case to resolve a conflict (omitting the Direction of the Lower Court'sDecision) and those in which it did not. This analysis is incomplete at best because the Court does notalways or even usually provide a reason for granting certiorari and we are missing this variablealtogether for cases decided in the 1937-1945 Terms. Still, it is worth noting that these models did notyield substantively different results from those reported in Table 2. See also infra Table 4.

33. To construct the figures, we used SPost. See J. Scott Long & Jeremy Freese, PostestimationAnalysis with Stata, SPOST, http://www.indiana.edu/-jslsoc/spost.htm (last visited Jan. 13, 2011). Weset all other variables at their mean or mode. For the Direction of the Lower Court Decision, the modeis 1 (liberal); for Cert, it is 1 (certiorari); for CivilLiberties Case, it is 1 (civil liberties case).

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TABLE 2: Logistic regressions of the probability of voting to invalidate afederal law, forty-four Justices in the 1937-2009 Terms34

Conservative Liberallaw law

Independent variable (1) (2)

Marginal effects at mean valuesJustice's ideology -. 118** .053**

(10.87) (4.80)Direction of the lower court's decision -. 063** .041*

(3.01) (2.13)Certiorari -. 067** -. 029

(2.73) (1.62)Civil liberties case .189** .009

(5.78) (.057)Number of orally argued cases in term -. 001 -. 001

(1.82) (1.82)Term .002* .001

(2.07) (1.44)N of observations 3143 2334

Turning briefly to the other variables in Table 2, we find that a lowercourt's liberal decision is significantly more likely to decrease the probabilityof invalidating a conservative law (equation (1)) and to increase the probabilityof invalidating a liberal law (equation (2)). These results are consistent with thewell-known tendency of the Court to reverse about two-thirds of the cases itdecides.35 We also find that the Justices are significantly more likely toinvalidate conservative than liberal civil liberties laws (see the positive andsignificant coefficient on the civil liberties variable in equation (1)) and a slighttendency to reduce the probability of striking down federal legislation inresponse to a greater number of cases decided each term. The negativecoefficient on this variable, however, is significant only in equation (2).

34. ** p < .01; * p < .05. t-statistics in parentheses.Standard errors are clustered by Justice. For conservative laws, the number of Justices is 43,

not 44. (Byrnes did not participate in a case reviewing a conservative law.)To check the robustness of the results, we used random effects logistic regression (with

justice as the "panel" variable). In equation 2, Cert. is significant atp < .05. Otherwise, the resultsdo not change.

The dependent variable, the Justice's vote in each case, is coded 1 (a vote to invalidate) or 0(a vote to uphold).

35. Segal & Spaeth, supra note 20, at 317 (noting "the Court's tendency to reverse thedecisions it reviews").

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FIGuRE 3: Predicted probability of voting to uphold a federallaw by the Justice's ideology 36

Conservative Law Liberal Law

I- -N

. - .

8 / /.-/1// \\M .0

. 2

o / /7, N

/ /4-

.2- /

I

/ .22 4 -4 -2 0 4

Justice's Ideology (Liberal to Conservative) Justice's Ideology (Liberal to Conservative)

B. Individual JusticesWhen assessing the behavior of the individual Justices, we consider two

separate but related questions. First, are Justices unlikely to strike down afederal law independent of whether it is liberal or conservative? If so, we callthese Justices restraintists. Second, if Justices do strike down a law, are they

much more likely to invalidate a liberal than conservative law or vice versa? Ifthe answer is yes, the Justice has a strong ideological preference for either

conservative or liberal outcomes. It is conceivable Justices could be bothrestraintists and ideologues. These Justices would strike down a relatively smallfraction of laws they review but would show strong preferences for upholding

laws that are consistent with their ideology and striking down those that are not.We call these Justices "opportunistic" restraintists or "closet" activists.

Opportunistic restraintists are faux restraintists. They appear to be restraintistsonly because they have reviewed a disproportionate number of cases that wereconsistent with their ideology. Hence, they face relatively little temptation to be

activists.Across the seven-decade period between the 1937-2009 Terms, there

appears to be an ideological structure to judicial self-restraint. In the 1937-1946 period (when fifteen of the eighteen Justices were appointed by

36. We generated the predictions using equations I and 2 (see also supra note 33). Thesolid line is the predicted probability; the dashed lines are 95% confidence intervals,

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Democratic Presidents and overall the Court invalidated only 5 of the 174 lawsthey reviewed), most of the individual Justices could be termed restraintists.

Column (3) of Table 3 shows that eleven of the eighteen Justices voted to

invalidate a federal law less than 20 percent of the time and thirteen of eighteenless than 25 percent of the time.

In contrast, only three of the twenty-four Justices appointed after 1952(Whittaker, White, and Burger) could be deemed restraintists striking down less

than 20 percent of the federal laws they reviewed.37 We do not think JudgePosner would find any of this surprising; after all, he argues that judicial

restraint existed only for the first few decades in our study; 38 only in the lateryears does the decline begin. Drilling down into the data, historically and bythe individual Justice, confirms that Judge Posner is right.

The first two columns in Table 3 reveal information about the ideological

leanings of the Justices. Of the eighteen pre-Eisenhower appointees, 39 thirteenexhibit no statistically significant ideological bent (72 percent)4°-includingtwo who figure prominently in Posner's account of the rise of judicial restraint,Brandeis and Frankfurter. 41 This was true throughout their careers. Frankfurterdid not approach federal laws with a heavier touch as the Court's leadership

changed hands from Hughes to Stone to Vinson to Warren. 42 Ten of thethirteen nonideological justices were also highly reluctant to strike downstatutes (striking down less than 23 percent of federal laws they reviewed) but

three were not. McReynolds, Butler, and Jackson voted to strike down 38percent or more of the federal laws they reviewed. Of the three, only Jackson

could be truly termed "nonideological" since the other two struck down a muchlarger proportion of conservative than liberal laws (though the differences werenot significant because the number of votes were relatively small).

37. If we set the restraintist limit at 25 percent, we would add five more Justices to the

restraintist category (Harlan, Blackmun, Powell, Rehnquist, and Alito).38. Also, we have collaborated on a book with Judge Posner that describes the strong relation

between ideology and the votes of Supreme Court Justices. Lee Epstein, William M. Landes, &Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of RationalChoice (unpublished manuscript) (on file with the authors).

39. The table eliminates Sutherland and Cardozo. They participated in only four cases each.40. Butler, one of two of the four horsemen in our dataset (the other is McReynolds), is not

statistically significant likely due to the small number of cases. Even including him as an ideologue,the percentage remains under 50 (14 / 23 =.61).

41. This finding may come as a surprise to some political scientists who have long argued thatFrankfurter was a faux restraintist. See Segal & Spaeth, supra note 20; Harold J. Spaeth, The JudicialRestraint of Mr. Justice Frankfurter-Myth or Reality?, 8 MIDWEST J. POL. Sci. 22, 38 (1964) ("Notonly for Frankfurter, but for all the Warren Court justices, the concept of judicial restraint is aneffective means of rationalizing response to policy-oriented values."); Harold J. Spaeth, Warren CourtAttitudes Toward Business: The "B" Scale, in JUDICIAL DECISION-MAKING 79, 98 (Glendon A.Schubert ed., 1963) ("Although Frankfurter is staunchly restraint-oriented in those relatively few casesin which the propriety of exercising Supreme Court power appears in isolation from economicliberalism and civil liberties values, his voting behavior in the cases involving administrative agencyregulation of business is hardly compatible with the image his apologists would have us accept ....

42. There is no significant difference under any Chief Justice.

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Turning to the five highly ideological pre-Eisenhower Justices, Black, andDouglas were clearly nonrestraintists, but Murphy, Rutledge, and Clark wererestraintists, invalidating less than 24 percent of the federal laws they reviewed.But Murphy and Rutledge should be viewed as opportunistic restraintistsbecause they voted to strike down the majority of conservative laws but rarelythe liberal laws they reviewed.

TABLE 3: Comparison of votes to invalidate liberal versus conservativefederal laws for forty-two Justices, 1937-2009 Terms43

Justice, listedchronologically(appointing President)

McReynolds(Wilson)

Brandeis(Wilson)

Butler(Harding)

Stone(Coolidge; Roosevelt)

Hughes(Hoover

44)

0. Roberts(Hoover)

Black(Roosevelt)

Reed(Roosevelt)

Frankfurter(Roosevelt)

Douglas(Roosevelt)

Murphy(Roosevelt)

Bymes(Roosevelt)

Fraction to invalidate(N of cases reviewing the constitutionality of

federal laws)Conservative Liberal All laws

laws laws.17* .44 .39(12) (45) (57)

.00 .00 .00(7) (24) (31)

.14 .47 .41(7) (32) (39)

.07 .05 .05(27) (84) (111)

.00 .04 .03(13) (50) (63)

.20(25).67**

(135)

.11(70)

.27(89).80**

(152)

.63**(19)

(0)

.18(77)

.08(157)

.06(104)

.18(107)

.17(128)

.11(65)

.11(9)

.19(102)

.35(292)

.08(174)

.22(196)

.51(280)

.23(84)

.11(9)

43. ** p < .01; * p : .05; §p <5.10. We exclude Sutherland and Cardozo. They participatedin only four cases in our dataset.

44. Appointed associate in 1910 by Taft. Our data cover only his years as Chief.

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CALIFORNIA LAW REVIEW

Jackson .41 .35 .38(Roosevelt) (44) (46) (90)

W. Rutledge .52* .00 .19(Roosevelt) (21) (36) (57)

Burton .16 .07 .12(Truman) (55) (44) (99)

Vinson .03 .13 .08(Truman) (30) (23) (53)

Clark .16** .00 .10(Truman) (67) (40) (107)

Minton .09 .13 .10(Truman) (35) (15) (50)

Warren .65** .05** .43(Eisenhower) (63) (57) (100)

Harlan .25 .21 .24(Eisenhower) (71) (38) (109)

Brennan .68** .07 .47(Eisenhower) (193) (100) (293)

Whittaker .18 .10 .16(Eisenhower) (22) (10) (32)

Stewart .29 .25 .28(Eisenhower) (134) (63) (196)

White .22* .11 .18(Kennedy) (180) (97) (277)

Goldberg .88** .11 .47(Kennedy) (8) (9) (17)

Fortas .77** .00 .43(Johnson) (13) (10) (23)

Marshall .68** .04 .48(Johnson) (155) (73) (228)

Burger .11* .23 .15(Nixon) (122) (57) (179)

Blackmun .30** .08 .23(Nixon) (162) (74) (236)

Powell .23 .19 .22(Nixon) (116) (54) (170)

Rehnquist .13** .44 .23(Nixon; Reagan) (200) (103) (303)

Stevens .48** .09 .34(Ford) (187) (107) (294)

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O'Connor .24** .43 .31(Reagan) (122) (76) (198)

Scalia .23** .53 .34(Reagan) (115) (64) (179)

Kennedy .31 .44 .36(Reagan) (105) (59) (164)

Souter .52** .11 .38(G.H.W. Bush) (82) (45) (127)

Thomas .25** .66 .40(G.H.W. Bush) (85) (50) (135)

Ginsburg .54** .11 .38(Clinton) (78) (46) (124)

Breyer .46** .11 .32(Clinton) (72) (45) (117)

Roberts .25 .33 .28(G.W. Bush) (20) (12) (32)

Alito .110 .40 .21(G.W. Bush) (19) (10) (29)

Sotomayor .57* .00 .33(Obama) (7) (5) (12)

A very different picture emerges for the appointees since Eisenhower.Only seven of the twenty-four (29 percent) exhibit no significant difference intheir voting based on the ideology of the law. This group includes Harlan,Whittaker, Stewart, Powell, and Kennedy but surprisingly also Roberts andAlito (both of whom had a relatively small number of votes and hence thedifference between their votes on conservative and liberal laws was notstatistically significant). Except for Kennedy (and possibly Stewart andRoberts) these judges are clear restraintists.

The remaining seventeen are either activists or opportunistic restraintistswilling to uphold laws that are consistent with their policy preferences andstrike those that are not. Of these, only four (White, Burger, Blackmun, andRehnquist) could be deemed opportunistic restraintists since overall they struckdown less than 24 percent of the federal statutes they reviewed.

Of course, it is possible that these patterns disappear once we useregression to control for other relevant variables, especially the direction of thelower court's decision. But, as the logit regressions in Table 4 show, this is notthe case. In fact, taking into account the other variables strengthens theunderlying historical patterns uncovered by Posner. For each Justice we includethe following independent variables: the ideological direction of the law, theideological direction of the lower court decision (1 if liberal and 0 ifconservative), and a dummy variable denoting whether the law involved civil

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liberties. To increase their reliability, we limit the regressions to Justices whohad at least fifty votes reviewing the constitutionality of a federal law. Thiseliminated twelve Justices from our sample. We also excluded votes in caseswhere there was a conflict in the lower courts (mainly between circuit courts,but also between federal and state courts and between state courts alone)because the variable denoting the ideological direction of the lower courtdecision would not capture the tendency of the Supreme Court to reverse thelower court ruling.45 Finally, we only report the marginal effect of the variabledenoting the ideology of law the Court reviews.

TABLE 4: Logit regressions on the probability of invalidating afederal law for thirty Justices with fifty or more

case participations, 1937-2009 Terms46

Regression coefficient(marginal effect) on Number of

Justice Law Ideology cases excluding(listed (1 = liberal law; lower courtchronologically) 0 = conservative law) conflict casesMcReynolds .222* 57

(2.54)Stone -. 009 111

(.42)0. Roberts .074 102

(1.35)Black -. 445** 273

(5.94)Reed -.058* 163

(1.98)

45. See supra note 32. Estimating the regressions for all cases does not call for any changes inthe interpretation of Table 4.

46. ** p <.01; * p < .05; §p _<. 10. Standard errors are clustered by Term.The regressions control for the direction of the lower court decision and civil liberties case

(we exclude the other variables because we cluster on term or because of collinearity in some ofthe individual models). In Warren's model, we exclude civil liberties cases because he never votedto invalidate a non-civil liberties law.

The regressions exclude cases in which the certiorari petition indicated a conflict in the lowercourts (between circuit courts, circuit court and state court, and state courts). Data on conflicts areonly available since 1946 so for the Terms before 1946 we include all cases including an unknownnumber of cases where there was a conflict. To deal with that problem, we split the lower courtdecision variable into two separate variables: lower court decisions before and since 1946. Thisonly affects the seven Justices in our sample who voted on cases both before and since 1946(Black, Reed, Frankfurter, Douglas, Murphy and Jackson). The regressions for both Vinson andMinton include a few lower court conflicts because otherwise, the number of observations woulddrop below 50.

We cannot model Hughes (he voted to strike only two laws, both liberal); Rutledge (nevervoted to strike a liberal law); and Clark (also never voted to strike a liberal law).

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2012] JUDICIAL SELF-RESTRAINT? 575

Frankfurter .051 180(.79)

Douglas -. 705** 258(5.45)

Murphy -. 268* 79(2.26)

Jackson .132 83(.86)

Burton -.133 86

(1.51)Vinson .100 53/22

(.93)Minton .063 50/44

(.064)Warren -. 928** 90

(6.36)Harlan .069 99

(.73)Brennan -. 735** 264

(6.73)

Stewart -. 040 183(.42)

White -. 078 248(1.52)

Marshall -. 834** 204(6.05)

Burger .130* 167(2.19)

Blackmun -. 198* 207

(2.09)Powell -. 058 157

(.65)Rehnquist .320** 253

(5.59)Stevens -. 367** 238

(4.61)O'Connor .203** 154

(2.99)Scalia .358** 131

(4.27)Kennedy .172§ 119

(1.78)



Souter -. 3310 92(1.94)

Thomas .540** 99(3.90)

Ginsburg -. 427** 90(3.09)

Breyer -. 349** 87(2.83)

For Justices who vote to promote their ideological preference, we predictthat the coefficient on Law Ideology would be positive for conservative Justicesand negative for liberal Justices. This is because a positive (negative)coefficient indicates that a change from a conservative to a liberal law willincrease (decrease) the probability that the judge will vote to strike down thelaw. Of the twelve Justices in Table 4 who were appointed before 1952, thecoefficient is significant for five (42 percent).47 Frankfurter and Harlan, two ofthe Justices identified as restraintists by Judge Posner, are not among this"ideological" group. Notice also that the ideological preference is particularlystrong for Black and Douglas. For example, the regression coefficient on theLaw Ideology variable indicates that a change from a conservative to liberal lawwill decrease the probability of voting to invalidate the law by .73 for Douglasand .47 for Black.

By contrast, for the eighteen Justices appointed since Warren in 1953,only four appear to be clearly non-ideological (Harlan, Stewart, White, andPowell), two others (Kennedy and Souter) are marginally ideological (theregression coefficients are significant at the .10 but not the .05 level), and theremaining twelve are significantly ideological (and, as expected, the liberalsvote to strike down conservative laws and the conservatives the opposite).Among these twelve Justices, the most ideological appear to be three liberals(Warren, Brennan, and Marshall) and one conservative (Thomas). For example,a shift from a conservative to liberal law decreases the probability by .83 thatMarshall will vote to strike down the law but increases by .54 Thomas'sprobability.

CONCLUSION

How can we account for this shift from Justices who seemed to subscribeto some version of judicial self-restraint to today's selective restraintists (oractivists)? Judge Posner points to the tum toward liberal activism and later tothe ascent of constitutional theory. Although we have not assessed thesemechanisms, it does seem that today's so-called theorists (e.g., Thomas) do not

47. The five are McReynolds, Black, Douglas, Murphy, and Reed. The only conservativeamong the five is McReynolds.

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2012] JUDICIAL SELF-RESTRAINT? 577

look much different from the unabashedly liberal activists (e.g., Brennan) ofyesteryear when it comes to the review of federal laws.

But, as Judge Posner would say, you knew that.


CALIFORNIA LA W RE VIEW [Vol. 100:557


Was There Ever Such a Thing as Judicial Self-Restraint?

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